A 529 plan is an education savings account that parents may set up to pay their children’s future college education costs. Otherwise known as a “Qualified Tuition Program” in the Internal Revenue Code, 529 plans are typically established through individual states or educational institutions and provide a variety of benefits. The primary benefit is that earnings derived from the investment of a 529 plan are not subject to federal taxation when used to pay college education costs. Unlike 401k accounts, however, the contributions to a 529 plan are not excluded from taxation, and there is no third party “matching” of funds.
To set up a 529 plan, you need one custodian (also known as the account holder), one beneficiary, and a plan administrator to invest the contributions. Parents who set up a 529 plan for their child can do so in … Read More »
If you are involved in a contested divorce in the Commonwealth of Virginia, the court will eventually set a date for an equitable distribution trial. At that trial, you and your spouse will have the opportunity to present proposals to the court for distribution of the marital property and debts. Occasionally, one party in an equitable distribution hearing will allege that the other has misused or deliberately disposed of marital property to purposefully deprive the other party of his or her share. This behavior is commonly known as “marital waste” or “dissipation of assets,” and the court has authority to consider such behavior in making an equitable distribution award.
But how does the court know when marital waste was purposeful? The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be … Read More »
Signed into law by President Bush in 2003, the Servicemembers Civil Relief Act (SCRA) both replaced and expanded the similarly-focused Soldiers and Sailors Civil Relief Act (SSCRA), which was originally passed in 1918. The purpose of the SCRA is to allow servicemembers to “devote their entire energy to the defense needs of the Nation.” As such, the SCRA provides legal protections to active duty members of the United States military when they are involved in lawsuits that affect their rights. This applies to all types of litigation, including divorce and child custody lawsuits. If you are a member of the military on active duty, the SCRA can assist you greatly. However, if you are involved in litigation against an active duty member of the military, the SCRA can place many additional hurdles in your path. Here’s how:
How the SCRA Can … Read More »
Let’s suppose the marriage between you and your spouse has broken down, and you are ready to dissolve it. You and your spouse have already begun moving in separate directions. Tensions are mounting, and you’ve stopped communicating to avoid further escalation. Despite this, you’d like to resolve things through the cheapest and most efficient means, i.e. a property settlement agreement, rather than spending the time and money to litigate the issues of marital property, custody and support in court.
The catch is that your spouse won’t answer your attempts to communicate, won’t hire an attorney or regularly communicate with the attorney he or she has hired, and won’t extend the courtesy of resolving matters efficiently. What can you do?
You have options, although you’ll need to balance what you know about your spouse with your desire for resolution. You can try to … Read More »
Let’s say a Virginia court order specifies that you owe child support in the amount of $500/month, but you recently lost your job and haven’t been able to afford to continue paying. Or you moved yourself and your children to Maryland to be near your parents even though your custody and visitation order states that you must provide the court and the other party with advance written notice thirty days before relocating outside the Commonwealth of Virginia. Regardless of your justifications, these are violations of court orders and they should not be taken lightly. If you expect to soon violate your court order, or if you have already violated your court order, you are probably wondering about the possible consequences.
When one party in a custody or divorce case violates a court order, the other party has the opportunity to petition … Read More »
If you are like most people, you want to minimize the costs of your divorce as much as possible. You’ve heard the stories about skyrocketing attorney fees and you intend to do everything in your power to avoid them. Plus, you and your spouse seem to be getting along and you think you’ll be able to come to an agreement on most or all of the marital issues. So you start browsing around online for a good template for a property settlement agreement or separation agreement. You can pick and choose the language you like and don’t like, and then you can add in provisions that seem like a good fit for you and your spouse. Sounds like a good plan, right? Think of all the legal fees you’ll save!
The problem with this approach, however, is that by cutting corners, … Read More »
Mediation is an increasingly popular form of alternative dispute resolution, used by more and more divorcing couples in Virginia. But, how do you know when mediation is in your best interests?
The goal of mediation is to effectuate a settlement between two opposing parties through the presence of a neutral third party. The strategies employed by mediators vary greatly and the length of the process can range from a couple hours to a number of days. For example, some mediators prefer to work collectively with the parties and attorneys to come up with an efficient solution. Others prefer to work with each party individually and determine his or her most important interests, and then relay those interests to the other party in a less contentious manner. “Offers” may be exchanged back and forth.
Ultimately, the result achieved from mediation is not binding … Read More »
If you are in the process of getting a divorce or fighting for custody of your children in Fairfax County, you may need information from the opposing party concerning his or her assets, living situation, sources of income, etc. This is where the discovery process comes in. The discovery process is an evidence-gathering opportunity for you to gain information that you would not otherwise have on your own. There are two types of discovery: (1) informal discovery, where parties and their attorneys voluntarily exchange documents and information, and (2) formal discovery, where litigants extract information from each other through written discovery requests, which carry deadlines for response and may be enforced by court action.
The discovery process may vary according to the court in which you file. In the Juvenile and Domestic Relations Court you must request permission from the court … Read More »
The Uniformed Services Former Spouses’ Protection Act (USFSPA) recognizes the ability of state courts to distribute a portion of a servicemember’s military retirement to a former spouse. Notably, USFSPA specifies that the maximum amount that can be paid to a former spouse is fifty percent of a servicemember’s “disposable retired pay,” which does not include retired pay that he or she waives in order to receive VA disability pay. In Mansell v. Mansell, 490 U.S. 581 (1989), the U.S. Supreme Court affirmed this rule and held that state courts may not divide upon divorce the military retired pay that a servicemember waives in order to receive disability pay.
The exclusion of retired pay waived for disability pay from division by state courts created perceptions of inequity in divorce cases, particularly where a servicemember had a high VA disability rating and could waive … Read More »
The division of marital property (property acquired during the marriage that is not separate property) can be a major hurdle in the divorce process. Examples of marital property include retirement funds, automobiles, furniture, and most notably, the marital home. The marital home is often a point of special contention. Parties fight over the marital home because they attach sentimental value to it, because they want to maintain stability for their children, and/or because of other financial considerations. For example, a party may want to hold on to the home because its current value is not necessarily indicative of its future value (assuming, as is often the case today, a bad housing market).
In the unlikely situation that your contested divorce goes all the way to an equitable distribution trial, Virginia Code Section 20-107.3 requires that the court consider a variety of … Read More »